Transposition (law)

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Transposition is a process by which countries who are parties to international agreements pass domestic legislation that gives these agreements force under their respective national laws. Certain international agreements do not have the force of law by themselves. Instead they act as contracts obliging the signatories to implement them through additional legislation.

Agreements requiring transposition are the opposite of those that are "self-executing" and thus have Direct effect, meaning they take force in the signatory countries in and of themselves (Examples of agreements that have direct effect include the U.N. Convention on the International Sale of Goods, the arbitration rules promulgated by the World Bank, and the NAFTA treaty).

An example of an agreement requiring transposition would be the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPs Agreement"), which has no legal effect of its own, but mandates that every country party to it must place a minimum 20-year term of protection on patents.

[edit] Political Considerations

The extent of required transposition varies from country to country, depending on its constitutional structure.

France is an example of one-end of the spectrum; its parliament emphasizes a monist view under which treaties are approved by the legislature and are thus virtually synonymous with domestic legislation. In such cases, transposition is either redundant or very little is required (in France, passing a law conflicting with the agreement requires withdrawal from the agreement).

Other countries, including Great Britain, the United States, Australia, and Canada, favor a more dualist view which reserves their right to have domestic laws which conflict with the international agreements they are parties to. In these cases, more extensive transposition is required.

[edit] European Union

Member States of the European Union ("EU") are subject to the authority of the EU's legislative branch, composed of the European Parliament and the Council of the EU.

When the legislative branch creates a piece of legislation, it is classified as either "regulatory" or "directive." Regulatory legislation has direct effect, and is immediately enforceable in all of the member states. Directive legislation requires transposition into each member state's national laws to have effect.

Transposition is the most important source for technical legislation and standards which regulate products and services. Likewise, it facilitates the free movement of goods among countries.

Depending on the level of harmony desired, the original agreement can be either very detailed, or more general. For instance, it allows a harmonized standard for equipment tolerances based on a definition of "essential requirements." [1]).

[edit] External links

• An example of Transposition is in the Pressure Equipment Directive (PED) of the EU, Article 5, Paragraph 2
• The complete text of the PED [2]

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